Blogging about badgers might seem unlikely – until they wind up in court. In 2011, a YouTube video entitled “The Crazy Nastyass Honey Badger” enjoyed a whopping following of nearly 90 million views; three minutes of a fearless honey badger foraging and hunting in the wild, with a quick nap in between snacks with a humorous narration by comedian Christopher Gordon with a repeated refrain: “Honey Badger Don’t Care.” The antics, images, and refrain began to appear on greeting cards, notably by Drape Creative and Papyrus-Recycled Greetings, both of whom were sued by Gordon had trademarked the phrase.
In his article, Ninth U.S. Circuit Panel Revives Honey Badger Trademark Suit, Shane Patrick Etchison (Staff Writer, Metropolitan News-Enterprise) captures this complex legal journey which initially found in favor of the defendants due to a 1989 U.S. Supreme Court opinion, Rogers v. Grimaldi. which implements a test known as the “Roger’s Test”.
Etchison writes: “Circuit Judge Jay S. Bybee delivered the panel’s opinion, on rehearing, reversing the judgment.
“He noted that while the first prong of the Rogers test cuts against Gordon’s claim, the second prong is a question for a jury to decide.
“Courts apply the test when weighing the two interests involved in a trademark infringement case. Under the test, such cases only survive when the public’s interest in avoiding consumer confusion outweighs the public’s interest in free expression.
“The two-prong test allows Lanham Act lawsuits only where ‘the defendant’s use of the mark (1) is not artistically relevant to the work or (2) explicitly misleads consumers as to the source or the content of the work,’
“Bybee explained. ‘Gordon’s mark is certainly relevant to defendants’ greeting cards; the phrase is the punchline on which the cards’ humor turns.’”
To read the full pleading for the appeal, visit the Ninth Circuit Court’s website.
Image used courtesy of the Johannesburg Zoo.